BRYAN CARTER; Northampton CCBC

[sickboy]

Carter will normally try and obfuscate in the hope that a small claims track will be assigned - then he will discontinue and avoid costs. Is the amount suitable for small claims?

 

You need to write a strongly worded letter to Carter demanding the other documents, and copy it in to the court.

 

Unfortunately the earlier links to your CCA and DNs is not working. Can they be re-posted?

 

Yes the claim should be assigned to the small claims track. The claimant is the OC, though it's really Fredricksons/Carter running the show.

 

The court has my previous cpr requests, so I'll make sure they get whatever I send off.

 

Sorry I'll upload them again and post a new link

[sickboy]

Unfortunately the earlier links to your CCA and DNs is not working. Can they be re-posted?

 

Sent you a pm with a new link!

[sickboy]

Just waiting to see if there has been a response to the order, will phone the court to check. Better double check the number of days for service again.

 

I've uploaded a letter which I am considering using. Something along the lines of the defendant has no liability to the claimant under any agreement:

 

"If you are currently in arrears, the transfer will not affect your liability to repay the outstanding amount. This will continue to be enforced through **********."

 

Also a snippet from the latest letter from Carter:

 

We enclose herewith the copy agreement and statements relating to your account which clarifies your liability in this matter.

 

Please forward your payment proposals to our offices within the next 10 days, failing which we will pursue through the Court for the full outstanding balance plus further costs.

 

In response to Carter I'll just point out my CPR requests and a statement with regards to further costs.

[sickboy]

Hi!

 

I had some advice and it appears that it's best to wait until the claim has been allocated to the small claims track. Then apply for a summary judgment with respect to CPR 24.2 (a)(i) "that claimant has no real prospect of succeeding on the claim".

 

Has anyone got any advice on summary judgments?

 

cheers

[cerberusalert]

Post up your default notice.... it's defective on more than one count..

[sickboy]

Post up your default notice.... it's defective on more than one count..

 

Thanks!

 

Here's the link; sickboy_ET's Images

 

Still waiting to hear back on the Default issue!

[citizenB]

Default notice was dated 11th July 2008 which was a FRIDAY

 

They required the full balance to be paid by the 25th July which was exactly 14 days from the date of the notice. No allowance has been made for posting.

 

For posting purposes a Notice posted on a Friday will not be considered delivered until the following Tuesday if posted 1st class or the Thursday if posted 2nd class or UK Mail service.

 

You DN fails on the time allowed for remedy in the first instance and the fact that they demanded the full balance in the 2nd.

 

The following is a draft defence in respect of a Dodgy Default Notice. Obviously you would require to amend it for your own circumstances.

 

 

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

6. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

[diddydicky]

Dn claims Total balance of the account to be paid in order to remedy the alleged breach

 

unless you owe the entire amount of the loan in arrears- the default notice is not in fact a default notice at all- but a termination letter

 

As a default notice is is legally impossible for you to comply with it - as to do so would defeat the intent and purpose of the default notice

 

nationwide have managed to develop a self filleting donkey

 

long live nationwide

 

i would be inclined to send a copy of it to bryan carter and tell him that nothing would give you (and your fellow caggers) more satisfaction than to come face to face in court with him on this claim

[diddydicky]

Dear Mr Carter

 

Your Ref

 

your reputation preceeds you

 

Nothing would give myself (and fellow caggers) more satisfaction than to fillet your donkey in court

 

accordingly i enclose a copy of the Purported Default Notice upon which you intend to rely, and in the words of Clint Eastwood, i extend the invitation

 

"Go on Punk, make my day"

 

Yours sincereley

 

XXX

Edited April 30, 2010 by diddydicky

[DonkeyB]

Nationwide have managed to develop a self filleting donkey

 

Dear Mr Carter

Nothing would give myself and fellow caggers more satisfaction for me than to fillet your donkey in court

 

Diddy, please be a little more sensitive

 

There's a lot of things I am renowned for doing to myself but filleting ain't one of them!

[diddydicky]

oops

 

may i re assure you that no donkeys were hurt during the formulation of this reply:D

[cerberusalert]

You could always fillet their Asses instead.

[sickboy]

Fillet your donkey! lmao

 

Cheers! gonna work on it over the weekend.

 

I wonder how much it is to hire a donkey for a trip to court?

[sickboy]

Would I be able to claim donkey hire as costs?

[DonkeyB]

I'm available! Excellent rates! Receipts given!

[sickboy]

Excellent!

 

Just wanna check though................... is being drunk after in charge of a donkey an offence?

[sickboy]

Dn claims Total balance of the account to be paid in order to remedy the alleged breach

 

unless you owe the entire amount of the loan in arrears- the default notice is not in fact a default notice at all- but a termination letter

 

As a default notice is is legally impossible for you to comply with it - as to do so would defeat the intent and purpose of the default notice

 

nationwide have managed to develop a self filleting donkey

 

long live nationwide

 

i would be inclined to send a copy of it to bryan carter and tell him that nothing would give you (and your fellow caggers) more satisfaction than to come face to face in court with him on this claim

 

I will be sending a letter off to Carter early next week!

 

Thanks for all the advice!

 

IT IS ORDERED THAT

 

1. The defendants costs be awarded to CAG!

btw

 

With respect to my previous application and subsequent order for disclosure, on transfer to my local court I now have an order for everything that I want. No need to panic about a defence as i I have loads of time!. Eat your heart out carter!

 

I'd like to thank pt2537 and his excellent thread. If you want something! go get it!

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

[means2anend]

subbing!

[sickboy]

Dn claims Total balance of the account to be paid in order to remedy the alleged breach

 

unless you owe the entire amount of the loan in arrears- the default notice is not in fact a default notice at all- but a termination letter

 

As a default notice is is legally impossible for you to comply with it - as to do so would defeat the intent and purpose of the default notice

 

Yes the want to advance to Mayfair and collect their £200, but they can sod off back to Old Kent Road

 

I did notice that they've changed the terms & conditions for new loans to:

 

5. Right to demand earlier payment

We may demand immediate and full repayment of your loan if:

• You gave us false or incorrect information when you applied for the loan; or
  
• You are more than fourteen days overdue with any amount you owe us.
  

If you fall behind with your repayments we may pass information about the amount you owe to a credit reference agency. Credit reference agencies record this information and companies may use it to assess any future loan/ credit applications you might make. This may affect your ability to get credit.

 

The "demand by written notice" has gone and the "if we so" has changed to "may"

 

Just waiting to see if they respond to the latest order. At the moment I'm just checking the cpr rules, but I may have them in breach of a previous order (just need to check if I can use the letter) and it looks like Carter back dated the letter on receipt of the order (keeping that envelope safe!)

[sickboy]

Well it's almost time to think about a defence, so just did a little tidy up of letters etc.

 

My docs:

 

1st Default Notice & Letter

2nd Default Notice & Letter

CCA T&C's (which i have from the back of another agreement)

 

History so far, starting with the most recent:

 

1. Local court Order

2. CCBC Order

3. Carter Part Disclosure: 1,2,3

4. Carter CPR Response

5. CCBC Claim Form

6. Carter Litigation

7. Transfer from OC

8. Carter Claim Card

9. Carter Final Notice

10. Freds threaten Carter

11. Freds Payment Card

12. Freds Confirmed Resident Card

13. Freds LBA

14. Freds First Letter

 

I'm not sure about 3 (2) and whether i can use it. I did receive a spreadsheet (statement) of the account when they part disclosed.

 

If someone can advise me as I don't want to get my toes burnt! . The dates are interesting as it it shows that the claimant was sitting on the docs for a week before the DJ sat to make the order and only released after the order was sent out. Carter back dated the disclosure letter to the day before the order.

Edited May 18, 2010 by sickboy
*Removed* worried about the Private & confidential at the bottom

[citizenB]

This is a loan isnt it ? I am not sure the usual rules surrounding Default Notices are the same. However, neither give sufficient time for remedy and why did they issue 2 of them.

 

Did you pay anything after receiving the 1st one ?

 

1st DN - Date 11th July 2008 (Friday) - remedy date 25th July 2008

This is 14 days from date of DN to remedy - no time allowed for post (2 business days - 1st : 4 business days - 2nd. As the date of issue was a Friday, you start to count the days from Monday.

 

2nd DN - Date 27th October 2008 (Monday) - remedy date 9th November 2008. Only 13 days from date of issue to remedy so screwed immediately, without taking into account no time allowed for posting.

 

Both of them require the "earlier repayment of the Total Balance" which is wrong. They are required to ask for arrears only. Then by way of a formal demand if you dont pay the arrears they ask for the Total balance.

 

The POC is vague, have they provided all the information required as per the General Order ?

 

On the General Order, they are asked to provide the NOA, but it looks as though it is actually Nationwide who are the claimant. So were Frederickson, never the assignee ??

 

 

 

They arent allowed to claim s69 interest.

 

The Claimant fails to plead that this claim concerns an agreement regulated by the Consumer Credit Act, 1974. However, the Claimant claims interest pursuant to section 69 of the County Courts Act, 1984 which the Claimant should surely know they are not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3)(a), which clearly prohibits such an award:

 

· The general rule

 

2(3) Interest shall not be payable under this Order where the relevant judgment - (a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974;

[sickboy]

Thanks for stopping by CB!

 

Yes it's for a personal loan. Still waiting on Carter as per the general order, so far recieved an interesting covering letter along with the front of a cca and a spreadsheet.

 

It's all a bit messy, so i'll send you a pm which will hopefully clear things up a little .

 

thanks

[citizenB]

Hi sickboy.. thanks for the pm.. I agree.. it is a tad messy

[sickboy]

*********

Edited May 25, 2010 by sickboy
Nothing Important

[sickboy]

Forgive me! it's been a long day...............

 

It's section 86, so as to try an avoid the issue with the defective 87 notices.

 

But it looks like good ammo to show how stupid Carter is!